Principles_of_State_Jurisdiction

The territorial principle The territorial basis for the exercise of jurisdiction reflects one aspect of the sovereignty exercisable by a state in its territorial home, and is the indispensable foundation for the application of the series of legal rights that a state possesses. That a country should be able to legislate with regard to activities within its territory and to prosecute for offences committed upon its soil is a logical manifestation of a world order of independent states and is entirely understandable since the authorities of a state are responsible for the conduct of law and the maintenance of good order within that state. The lotus case The nature of territorial sovereignty in relation to criminal acts was examined in theL ot u s case 1927. The relevant facts may be summarized as follows. The French steamer, theL o tu s, was involved in a collision on the high seas with theB o z-K ou rt, a Turkish collier. The latter vessel sank and eight sailors and passengers died as a result. Because of this the Turkish authorities arrested the French officer of the watch (at the time of the incident) when theLo t u s reached a Turkish port. The French officer was charged with manslaughter and France protested strongly against this action, alleging that Turkey did not have the jurisdiction to try the offence. The case came before the Permanent Court of International Justice, which was called upon to decide whether there existed an international rule prohibiting the Turkish exercise of jurisdiction. Because the basis of international law is the existence of sovereign states, the Court regarded it as axiomatic that restrictions upon the independence of states could not be presumed. However, a state was not able to exercise its power outside its frontiers in the absence of a permissive rule of international law. But, continued the Court, this did not mean that µinternational law prohibits a state from exercising jurisdiction in its own territory, in respect of any case which relates to acts which have taken place abroad and in which it cannot rely on some permissive rule of international law¶. The Court rejected the French claim that the flag state had exclusive jurisdiction over the ship on the high seas, saying that no rule to that effect had emerged in international law, and stated that the damage to the Turkish vessel was equivalent to affecting Turkish territory so as to enable that country to exercise jurisdiction on the objective territorial principle, unrestricted by any rule of international law prohibiting this. The nationality principle Since every state possesses sovereignty and jurisdictional powers and since every state must consist of a collection of individual human beings, it is essential that a link between the two be legally established. That link connecting the state and the people it includes in its territory is provided by the concept of nationality. By virtue of this principle the state has the power to have jurisdiction over the people of the state. In general, the two most important principles upon which nationality is founded in states are first by descent from parents who are nationals (jus sanguinis) and second by virtue of being born within the territory of the state (jus soli). This was the central point in the Nationality Decrees in Tunis and Morocco case 1923.This concerned a dispute between Britain and Franceover French nationality decrees which had the effect of giving French nationalityto the children of certain British subjects. The Court, which hadbeen requested to give an advisory opinion by the Council of the Leagueof Nations, declared that: [t]he question of whether a certain matter is or is not solely within the jurisdiction of a state is an essentially relative question, it depends upon the development of international relations. However, although states may prescribe the conditions for the grant of nationality. The passive personality principle Under this principle, a state may claim jurisdiction to try an individualfor offences committed abroad which have affected or will affect nationalsof the state.The leading case on this particular principle is theCuttingcase in 1886which concerned the publication in Texas of a statement defamatory ofa Mexican by an American citizen. Cutting was arrested while in Mexicoand convicted of the offence (a crime under Mexican law) with Mexicomaintaining its right to jurisdiction upon the basis of the passive personalityprinciple. TheUnited States strongly protested against this, but therewas an inconclusive end to the incident, the charges being withdrawn bythe injured party. The overall opinion has been that the passive personality principle israther a dubious ground upon which to base claims to jurisdiction underinternational law and it has been strenuously opposed by theUS and theUK, although a number of states apply it. The protective principle This principle provides that states may exercise jurisdiction over alienswho have committed an act abroad which is deemed prejudicial to thesecurity of the particular state concerned. It is a well-established concept, Although there are uncertainties as to how far it extends in practice andparticularly which acts are included within its net. The protective principle is often used in treaties providing formultiplejurisdictional grounds with regard to specific offences. The universality principle Under this principle, each and every state has jurisdiction to try particularoffences. The basis for this is that the crimes involved are regarded asparticularlyoffensive tothe international community as awhole. There aretwo categories that clearly belong to the sphere of universal jurisdiction,which has been defined as the competence of the state to prosecute allegedoffenders and to punish them if convicted, irrespective of the place ofcommission of the crime and regardless of any link of active or passivenationality or other grounds of jurisdiction recognised by internationallaw. These are piracy101 and war crimes. However, there are a growingnumber of other offences which by international treaty may be subject tothe jurisdiction of contracting parties and which form a distinct categoryclosely allied to the concept of universal jurisdictionWar crimes, crimes against peace and crimes against humanity are subjects of this principle. The International Law Commission adopted a Draft Code of Crimesagainst the Peace and Security of Mankind in 1996. Article 8 providesthat each state party shall take suchmeasures asmay be necessary to establishits jurisdiction over the crimes laid down in the Draft, while article 9provides that a state in whose territory an individual alleged to have committeda crime against the peace and security of mankind is present shalleither extradite or prosecute that individual. State servitude When foreign incidents claimed to have adverse effect on the interests of the states. Claims have arisen in the context of economic issues whereby some states particularly the united stated, seek to apply their laws outside their territory in a manner which may precipitate conflicts with other states. State servitude It is the term used to denote the exceptional restrictions made by the treaty or otherwise on the territorial supremacy of the state by which a part or whole of its territory is in a limited way to serve the purpose of another state. The four types of the state servitude are: a) Positive servitude ± it is a situation when one state permits the other state to do some work in its territory. b) Negative servitude ± when state disallow the other state from doing some work. c) Military servitude ± in this case one state limits its sovereignty in a part of its territory for the military purpose of another state, e.g.Malta state giving an island to the state of Britain for military purpose. d) Economic servitude ± allowing transport and commercial facilities in a part of the state. Immunities from state jurisdiction or exceptions of state jurisdiction 1) Diplomatic agents ±they are immune from the jurisdiction of the civil and criminal courts of the receiving state because of the special functions they perform. 2) Foreign embassies ± they being treated as the part of the home stated are immune from state jurisdiction. 3) Foreign sovereign ± the immunity is on the principle that one sovereign cannot exercise jurisdiction over other sovereign. 4) Public property of foreign state ± they also come under the exceptions of state jurisdiction, theUnited Nations convention on jurisdictional immunities of states and their property adopted on December 2002 byU.N. general assembly gives effect to this. Exceptions a) Express consent to exercise jurisdiction i.e. international agreement, written contract, written declaration in a special court proceeding. b) Commercial transactions ± rules of private international apply in this case, article 10 of theU.N. convention onjurisdictional immunity of states and their property. c) Contracts of employment d) Personal injury and damage to property i.e. pecuniary compensation for the death of a person e) Ownership, possetion and use of property unless otherwise agreed. f) Intellectual and industrial property g) Participation in industry or other collective body. 5) International organisations- e.g. united nations organisations 6) Foreign troops ±waiver of all jurisdiction when passing through another state, permits the foreign army to exercise jurisdiction on its army for discipline and inflict those punishment which the government of their army require. 7) Immunity of warships and their crew- however it does not include crimes under international law.